Fox News is pushing back against comments by proponents of filibuster reform such as Sen. Elizabeth Warren (D-MA), who said last week that the practice in the Senate “has deep roots in racism” and that, with its supermajority requirement, it should not be allowed to “create a veto for the minority” in a democracy. On the contrary, they say, the filibuster was not created in order to serve racism, and it is important for a political minority to be able to force the majority into bipartisanship and compromise for the greater public interest.
The problem is that the filibuster does have a serious historical link to racism — and there is currently no bipartisanship or compromise to be had on behalf of the public, due to specific decisions that Republicans have made.
Senate Minority Leader Mitch McConnell (R-KY) appeared Wednesday on Fox News’ America’s Newsroom and told co-anchor Bill Hemmer that because of the filibuster, “you have to have some kind of bipartisan buy-in or the bill doesn't pass” the Senate. He then argued that the Senate itself “is designed on purpose to kill bad ideas — or to reach a compromise, so that you can reach that supermajority threshold. It keeps America in the political center.”
And when co-anchor Dana Perino asked McConnell to respond to the idea that the filibuster was “based on racism,” McConnell replied: “No, the filibuster predates the debates over civil rights. It goes back to the beginning of the country. The filibuster started well before we got into the civil rights debates that have occurred off and on over the history of the country. So the derivation of the filibuster was not related to race or civil rights.”
The filibuster’s creation — and its usage from then on
Essentially, McConnell and his right-wing media allies are splitting hairs about whether the filibuster was specifically created in order to oppose civil rights. They are technically correct on that narrow historical point — because in a sense, the filibuster was not deliberately created at all.
As modern critics of the filibuster will readily admit, it was originally the result of an attempt by Vice President Aaron Burr to simplify the Senate’s written rules during the first decade of the 1800s, but the effort had the apparently unintended effect of removing a clause on cutting off debate.
Still, it was the political champions of segregation who elevated the filibuster into an entire body of political practice, beginning with filibusters of civil rights bills in the 1870s, a voting rights bill in the early 1890s, and anti-lynching bills in the 1920s. As a result of Southern filibusters, civil rights bills that actually passed in 1957 and 1960 were incredibly weakened, and it was not until 1964 that the Senate finally defeated a filibuster on a civil rights bill, overriding a reactionary coalition of most Southern Democrats and a handful of Republicans including presidential nominee Barry Goldwater.
To disregard this entire body of history, based on the narrow point of the filibuster’s creation under Aaron Burr, also serves to distract from the ongoing threat of filibusters against voting rights bills such as H.R. 1 and S. 1 and legislation to grant statehood to the District of Columbia and Puerto Rico, jurisdictions with large proportions of residents of color. At the same time, Republican state legislators across the country are waging a coordinated effort to restrict access to voting in the wake of the Democratic victory in the 2020 election, an effort that H.R. 1 and S. 1 would curtail.
The bigger problem: What “bipartisanship” are we even talking about?
On Tuesday’s edition of America Reports with John Roberts, Fox News contributor Juan Williams defended Warren’s critique of the filibuster in light of such events as the record-length filibuster by South Carolina Sen. Strom Thurmond in the 1950s. He also noted a further problem: “If you have some problem with Congress not getting anything done, then I think you have a problem with the filibuster. For most of our history, it was used like once a year. But in the last 10 or 11 years, it's been used like 80 times a year — not to slow legislation, but to stop it. And at some point, we have to deal with that.”
Fox News contributor Charlie Hurt countered, however, that Warren was trying “to twist that around and make it into some racist thing” — instead, he said, the filibuster was “designed to protect minority rights” as a major preoccupation going back to the founding of the country. (Of course, the filibuster was not originally designed at all, though Hurt conflated it with other debates around how to construct the Constitution.)
“The filibuster is designed so that a simple majority doesn't run roughshod over the minority,” he said, “so that the majority actually has to get buy-in from the minority so that they come up with better, larger, broader solutions to problems, which of course is what we need more of in this country.”
But all the talk about the filibuster forcing compromise and the building of large coalitions between the parties is really an obfuscation of a core issue: that it is the deliberate strategy of McConnell and other Senate Republicans to withhold any sort of compromise — even on things they would otherwise agree on — in order to foster public dysfunction and undermine any Democratic president.
Politico’s Michael Grunwald explained in 2016, as the Obama administration was coming to a close, that while Republicans indeed “had real philosophical differences” with Obama, “they also filibustered and voted in lockstep against previously uncontroversial” measures, such as infrastructure spending and small-business tax cuts.
Republican leaders simply did not want their fingerprints on the Obama agenda; as McConnell explained, if Americans thought D.C. politicians were working together, they would credit the president, and if they thought D.C. seemed as ugly and messy as always, they would blame the president. The late Ohio [Sen.] George Voinovich told me in 2012 that there wasn’t much tactical nuance in the Republican cloakroom on Obama-related matters: “If he was for it, we had to be against it.”
Furthermore, the modern cycle of changes to the filibuster kicked off in late 2013 after Senate Republicans had engaged in a blanket filibuster of all nominees to a set of key judgeships, with McConnell claiming that the vacancies should not even have been filled at all. After Democrats eliminated the filibuster for lower court judgeships, McConnell himself then later eliminated it for the Supreme Court in 2017. (That had followed McConnell’s unprecedented blocking of Obama’s Supreme Court nominee from getting even a Senate hearing, much less a vote, while Republicans had the majority.)
The filibuster and supermajority requirement are allegedly meant to foster compromise and bipartisan buy-in — or at least, its proponents would argue that the political system adapted to it as such. But it becomes truly malignant when one side has figured out a plan to deny all compromise and buy-in as a political strategy in and of itself.
And when a political minority has adopted such a pursuit of legislative sabotage, separated even from any specific policy proposals, then its special pleadings about bipartisanship and compromise should not be treated seriously.